STATE OF NEW JERSEY v. D.M.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02682-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.M.A.,

Defendant-Appellant.

________________________________________________________________

December 29, 2014

Submitted December 9, 2014 Decided

Before Judges Reisner, Koblitz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1164.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant D.M.A. appeals from an October 9, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons expressed in Judge Robert J. Mega's comprehensive sixteen-page written opinion.1

In 2006 defendant was found guilty of sexually assaulting A.A. from the time she was eleven years old until she was fifteen years old. A jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree child abuse, N.J.S.A. 9:6-3. Defendant was acquitted of first-degree aggravated sexual assault and three counts of second-degree sexual assault, all charges of committing sexual penetration against A.A. at different times when she was a child. At the time of trial, A.A. was seventeen years old.

We summarized the trial evidence in our decision on defendant's direct appeal

A.A., who was born in Jamaica, came to the United States at the age of seven to live in Orange with defendant, defendant's sister, S.A. and her children. Both A.A. and defendant believed he was her biological father. Thereafter, the family moved to Summit. During the weekday, defendant held two jobs in New York City. On some evenings, A.A. stayed with defendant and slept at his place of employment. When A.A. was eleven, she and defendant moved to their own two-bedroom home in Summit. Because defendant continued to work two jobs, during the week A.A. would sometimes stay with her aunt or accompany defendant to his evening employment. Defendant was home on the weekends.

Defendant began making sexual gestures toward A.A., suggesting she "looked sexy," smacking her "behind" and asking her to try on clothing that he purchased, such as jeans, shirts, and bras. A.A. admitted she did not protest or object to defendant's conduct. On one occasion, A.A. developed a yeast infection, and defendant asked to watch her shower and apply the vaginal medication. A.A. felt "violated" and "embarrassed," but acceded to defendant's requests because she felt "scared and thought it wouldn't happen again."

Before A.A.'s twelfth birthday, V.A., a girlfriend of defendant, who agreed to care for A.A., and her ten-year-old daughter S.S. moved into defendant's home. V.A. slept in the downstairs bedroom and her daughter slept with A.A. in the upstairs bedroom. V.A. cared for A.A. while defendant worked in New York. A.A. visited defendant at his job when she did not have school the following day; she recalls she only stayed overnight one evening.

Defendant continued making sexual gestures toward A.A. when V.A. was not present. One evening, while S.S. was asleep, defendant entered A.A.'s bedroom. He "groped her breasts" and touched her vagina over her clothing. A.A. stated she was scared and told defendant to stop. He complied and left her room. A.A. did not reveal this incident. Two weeks later, defendant repeated similar sexual contact one weekday when he was not working. A.A. requested defendant stop, and he replied he was "going to do this for awhile." The incident lasted ten to fifteen minutes. A.A. did not tell anyone because she was "scared." Thereafter, defendant regularly committed similar assaultive acts on the weekends, and then began touching A.A. underneath her clothing.

While living in defendant's home, V.A. heard defendant go upstairs to A.A.'s room late at night and, on several occasions, noticed defendant was missing from his sofa bed in the middle of the night. V.A. once saw A.A. laying in bed between defendant and S.S. Approximately one month following the first touching incident, V.A. requested S.S. to sleep downstairs with her, rather than upstairs with A.A., on the weekends when defendant was home. In the summer 2001, V.A. and S.S. left defendant's residence. A.A. stayed with her aunt in Georgia for one month. For the remainder of the summer weekdays, she stayed with her aunt in Summit or at defendant's job. The touching incidents continued.

Prior to A.A.'s thirteenth birthday, A.T., an acquaintance of defendant, and her children moved into defendant's house. Y.T., A.T.'s twenty-one-year-old daughter, shared a bedroom with A.A. Defendant did not touch A.A. while she shared her room with Y.T. One evening, while A.A. slept at defendant's place of employment, he groped her breasts and vaginal area. That evening, he also removed her clothing and rubbed his penis against her vagina. A.A. was crying and told defendant to stop. Instead, he attempted to perform cunnilingus. Defendant was unsuccessful because A.A. resisted. The incident lasted approximately twenty minutes. A.A. did not disclose the assault because she was afraid "no one would believe" her.

Y.T. left defendant's house and within a few weeks, defendant resumed entering A.A.'s bedroom, touching her and rubbing his penis against her vagina. The assaults were repeated on subsequent weekends.

Following A.A.'s fifteenth birthday, on weekends when A.T. was not home, defendant began penetrating A.A.'s vagina with his fingers, while he masturbated. On five occasions defendant asked A.A. to perform, and he received, fellatio in exchange for privileges. The first time this occurred, defendant allowed A.A. to attend a party. Defendant also performed cunnilingus on A.A. five or six times. A.A. mentioned the abuse to someone, but did not identify defendant as the abuser because she feared being placed in foster care. A.T. and her children moved from defendant's residence shortly after the first oral sex incident.

Defendant stopped working his second job. Thereafter, the above described acts of sexual assault occurred almost every day. Defendant's routine included running on a treadmill for thirty minutes at 3 a.m., directly followed by molestation of A.A. On one occasion, while defendant rubbed his penis against A.A.'s vagina, he ejaculated on her pajamas. During this time, if A.A. resisted, defendant slapped and punched her body and face. A.A. acknowledged she did not resist every time because she "knew he was going to end up getting it in the end anyway[]."

2 On June 17, 2005, A.A. spent the evening with her friend, Q.B., and arrived home at 10 p.m. Defendant was not home, but A.A. noticed her room was "out of place." She changed her clothes and telephoned defendant, advising she was home. When he arrived, defendant forced A.A. to rechange her clothing to wear what she had worn that evening, then he repeatedly struck her face, arms and back. Defendant also struck A.A. with a cordless telephone and a shoe, and told her to "get the fuck out of [his] house" because it was her "last night there." A.A. left because defendant threatened to "fucking kill her." She went to Q.B.'s home and related the details of defendant's assault that evening as well as the past years of molestation.

The following day, A.A. repeated the information to the police. Detective Thomas Rich spoke with A.A. and Q.B. from 2 p.m. to 7:30 p.m. He noticed A.A.'s face and arms were bruised and cut. When the interview concluded and A.A. left, Rich called defendant requesting he come to the police station.

Defendant arrived and was arrested. Defendant was informed of the charges based on A.A.'s statement and Mirandized. Initially, defendant admitted he physically punished A.A. for having guests at the house without permission and then lying about that fact. He consistently denied any sexual contact with A.A., including calling her "sexy" or touching her behind.

Rich typed defendant's custodial statement, based on an interview held later that evening, which the defendant signed. In that statement, defendant admitted disciplining A.A. by holding her down with his knees, while she was naked, and slapping her in the face. He also acknowledged his penis might have rubbed against her vagina, through his underwear, while he was on top of her.

At trial, Q.B. testified to what A.A. told her about the years of prior abuse. Under direct examination, A.A. acknowledged she saw V.A. and A.T. after they moved from the Summit residence but never told them about defendant's sexual abuse. Also, A.A. did not disclose the abuse to her aunt in Georgia, her mother, or her teachers, except for one counselor to whom she revealed she experienced problems at home. A.A. admitted her first full disclosure was to Q.B. on June 17, 2005.

Defendant testified on his own behalf, denying any abuse of his daughter. He asserted the custodial statement was the product of coercion. He stated that, after he denied the allegations made by A.A., he was placed in a holding cell. When he was removed, he was interrogated for a second time by Rich. In the interrogation room, Rich stared at defendant, and when defendant averted his eyes, Rich "punched [him] in the chest several times." Rich then took him to another area and began typing while he questioned defendant. The typed statement did not accurately reflect defendant's responses. Defendant made some corrections then signed the statement.

[State v. D.M.A., No. A-3931-06 (App. Div. October 20, 2009) (slip op. at 3-9).]

On direct appeal defendant raised these issues

POINT I: THE JURY INSTRUCTION ON FRESH COMPLAINT UNCONSTITUIONALLY INTRUDED ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TOLD THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT [THE ALLEGED VICTIM'S] TESTIMONY IS UNTRUTHFUL BASED ONLY ON HER SILENCE OR DELAYED DISCLOSURE"; MOREOVER, THAT SAME FRESH COMPLAINT INSTRUCTION ERRED WHEN IT DID NOT EXPLAIN TO THE JURY THAT THE EXTREME DELAY IN REPORTING THE ABUSE TO ANOTHER WAS A PROPER FACTOR TO CONSIDER AGAINST THE CREDIBILITY OF THE ALLEGED VICTIM.

POINT II: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE, AND NO REASONS WERE GIVEN AT ALL FOR THE IMPOSITION OF CONSECUTIVE SENTENCES FOR SEXUAL ASSUALT AND ENDANGERING THE WELFARE OF A CHILD.

We affirmed defendant's conviction, but reversed and remanded for resentencing. Id. at 2-3. Defendant was resentenced to an aggregate sentence of twenty years, with eight years of the twenty years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed the length of the sentence and we affirmed by order. State v. D.M.A., No. A-4173-09 (App. Div. October 19, 2010) (Order).

On appeal from the denial of his PCR petition, defendant raises the following issues

POINT I: DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.

A. FAILURE TO LIMIT OTHER CRIMES EVIDENCE.

B. FAILURE TO LIMIT FRESH COMPLAINT TESTIMONY.

C. THE READBACK OF A.A.'S TESTIMONY.

D. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

I

A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). The defendant also must demonstrate prejudice. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. Ibid. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)).

The standard of review for a denial of PCR is whether the judge's findings were supported by sufficient and credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Echols, 199 N.J. 344, 357 (2009). Specifically, in reviewing cases alleging the denial of effective assistance of counsel, we engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (citation and internal quotation marks omitted).

Defendant argues that his trial counsel provided ineffective assistance in three areas because he failed to: (1) "attempt to prevent the introduction of improper 'other crimes' evidence"; (2) "attempt to limit the fresh complaint testimony of Q.B."; and (3) "object to the trial judge's refusal to accede to the jury's request for a read-back of A.A.'s testimony." Defendant also argues that his appellate counsel was ineffective in failing to raise these issues on direct appeal.

In order to prevail on a claim of ineffective assistance of counsel, a petitioner may need to depend on facts outside of the trial record to establish a constitutionally deficient representation. The trial court is vested with discretion under Rule 3:22-10 to conduct an evidentiary hearing to determine additional facts surrounding counsel's trial representation and to elicit the attorney's testimony. State v. Preciose, 129 N.J. 451, 462 (1992) (citation omitted).

The trial court, however, should only grant an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. To establish a prima facie case, "defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington. . . ." Id. at 463. When determining whether plaintiff has set forth a prima facie case, the court will view the facts in a light most favorable to the plaintiff. Id. at 462-63; see State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

A defendant must do more than make "bald assertions" that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. Cummings, supra, 321 N.J. Super. at 170. If the defendant fails to make a showing of a prima facie case, an evidentiary hearing is not required. Ibid. (citation omitted).

II

Defendant argues that his trial counsel allowed the introduction of improper 'other crimes' evidence. A.A. testified that defendant committed sexual contact against her in New York City in 2001 when she was twelve years old. She said that after that incident, the sexual contact continued on a weekly and then a daily basis in New Jersey. Defendant argues that defense counsel was ineffective in not moving to exclude this testimony pursuant to N.J.R.E. 404(b). Judge Mega notes in his opinion that trial counsel did voice his "concern about the relevance and prejudicial value of same." The trial judge agreed to give a limiting instruction and did so, instructing the jury, "Anything that happened in the State of New York is not for your consideration in this case." Juries are expected to follow the judge's instructions. State v. Miller, 205 N.J. 109, 126 (2011). Judge Mega determined that counsel's decision to object to this testimony on the basis of relevance, N.J.R.E. 401, rather than pursuant to N.J.R.E. 404(b), was a matter of strategy and therefore not assailable in a PCR petition. State v. Buonadonna, 122 N.J. 22, 38 (1991). We agree.

III

Defendant argues next that defense counsel failed to object to the fresh complaint testimony offered by Q.B. The "fresh complaint" doctrine permits the State, in a sexual abuse prosecution, to present evidence that a victim voluntarily and "spontaneously complained of the crime within a reasonable amount of time to someone the victim would normally turn to for help and advice." State v. Scherzer, 301 N.J. Super. 363, 419 (App. Div.) (citing State v. Hill, 121 N.J. 150, 163 (1990); State v. Tirone, 64 N.J. 222, 226 (1974)), certif. denied, 151 N.J. 466 (1997). The "fresh complaint" doctrine is an attempt to address the timing of disclosure by allowing testimony of the revelation to negate a possible negative inference that the victim was not sexually assaulted because she did not immediately complain. Hill, supra, 121 N.J. at 164; Scherzer, supra, 301 N.J. Super. at 419. Although evidence of a late disclosure does not give rise to a presumption of untruth, it may be considered a part of the totality of circumstances in assessing credibility. State v. P.H., 178 N.J. 378, 396-97 (2004). The trial court has sole discretion in determining whether fresh complaint criteria for admissibility are satisfied. See State v. Bethune, 121 N.J. 137, 147-48 (1990).

Defense counsel did object to this evidence, but the objection was overruled by the trial judge. Additionally, the judge gave the standard jury charge on fresh complaint evidence. See Model Jury Charge (Criminal), "Fresh Complaint" (2007). The failure to file a pre-trial motion rather than object at trial is a strategic decision and not a basis to argue ineffective assistance of counsel. Buonadonna, supra, 122 N.J. at 38.

IV

Defendant argues that his trial counsel was also ineffective for failing to object when the trial judge refused the jury's request for a read-back of A.A.'s testimony. The judge did discourage the jury from obtaining a read-back of A.A.'s entire testimony, which encompassed 110 pages of the trial transcript.

In the Miller case, our Supreme Court explained that requests for read-back of trial testimony during deliberations should ordinarily be granted

Juries routinely ask to review trial testimony when they deliberate. Absent some unusual circumstance, those requests should be granted. The requests are a clear sign that the evidence sought is important to the deliberative process. They also reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial. As a result, the true administration of justice requires that judges typically accede to jury requests to review testimony. Judges should not decline a request simply because it would take time.

[State v. Miller, 205 N.J. 109, 119-20 (2001) (citations and internal quotation marks omitted).]

In State v. Wilson, 165 N.J. 657, 660 (2000), our Supreme Court discussed that jury requests for read-back, although usually granted, are discretionary

We add only this. The rules governing the readback of testimony are relatively straightforward. It is well-established that the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court.

However, that broad grant of discretion is not unbridled. For example, where the testimony is reasonably available, a judge should not refuse to grant a jury request to have it read merely because the reading would take time . . . . [T]here is no just reason for insisting that laymen jurors must have an unfailing and unanimous memory of all the testimony they hear in the courtroom.

The trial court responded to the juries request for a read-back of A.A.'s full testimony in the following manner

Well that will take hours. Absolute hours. She has to locate it. It's not already printed up and stuff like that. She has to go through it and take out things with objections and stuff like that and it will take hours to read to you. There comes a point in time in your deliberations when you have to rely on your collective memory of the case and you've reached that time. If you want it, I will give it to you, but you are going to be here until midnight tonight at this rate. Let me know if you really, really, really want it and we'll start the process and probably start reading to you at about 12:00 and we'll continue to read to 2:00. We'll have to miss the lunch hour. Please go back and let me know if you really need it.

Judge Mega was not persuaded by defendant's argument, writing in his opinion,

After carefully reviewing the transcript, however, the [c]ourt notes that the trial judge did not, in fact, refuse the jury's request for a read-back. Rather, the trial judge merely indicated that it would take hours to conduct same. . . . The jury continued deliberations and returned a verdict later that day. As the trial judge did not refuse to read back A.A.'s testimony, [p]etitioner's argument that trial counsel's failure to object to such refusal is without merit.

The trial judge certainly could have handled this jury request with more patience. Although A.A.'s testimony was lengthy, it could have been read back in its entirety. Alternatively, the judge could have asked the jury to focus upon which sections of the testimony in particular it was concerned about. No defendant, however, is entitled to a perfect trial. State v. Feaster, 156 N.J. 1, 84 (1998) (citations omitted). There is no reason to believe that a read-back would have influenced the jury's verdict in defendant's favor. Defendant was acquitted of the more serious charges involving sexual penetration, even though A.A. testified that penetration occurred. He was convicted of sexual contact, which is what he came very close to admitting in his statement when he was arrested. It is clear from considering the totality of the evidence before the jury that a read-back would not have called into question the strong evidence against defendant on the sexual contact charges. See State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (citations and internal quotation marks omitted). Thus defendant has failed to demonstrate a clear error by counsel, nor the requisite prejudice.

V

In his final argument, defendant argues that appellate counsel was ineffective in not raising the issues discussed above. The Strickland/Fritz standard also applies to appellate counsel. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). In State v. Loftin, 191 N.J. 172, 198-99 (2007), our Supreme Court held that a finding of ineffective assistance of appellate counsel may be based upon the failure to raise a material issue on appeal. To prevail on this claim, defendant would have to show, by a preponderance of the evidence, that there was "a reasonable probability" that if appellate counsel had raised an issue on appeal, the result "would have been different." Loftin, supra, 191 N.J. at 198 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698) (citations omitted).

Because we find none of defendant's other claims persuasive, he is unable to prevail on his claim of ineffective assistance of appellate counsel. Had appellate counsel raised all of the issues defendant raises in his PCR petition, we would not have reversed defendant's conviction on direct appeal. The evidence against defendant was strong. Although, as in most cases involving sexual assaults on a child, the behavior took place when only the child and perpetrator were in the room, other witnesses substantiated defendant's opportunity to commit these crimes. A.A. also reported the crimes to a witness before going to the police and defendant himself admitted to inappropriate behavior to the police, although minimizing the intentionality of his behavior.

Because defendant was unable to demonstrate a prima facie case of ineffective assistance of trial or appellate counsel, he was not entitled to an evidentiary hearing. Substantially for the reasons expressed in Judge Mega's written opinion, as well as those delineated here, we affirm the denial of defendant's petition for PCR without such a hearing.

Affirmed.

1 We note that the State's brief was not helpful to us in reaching our decision. It relied on our decision on direct appeal and Judge Mega's decision, without any additional discussion. R. 2:6-4(a); R. 2:6-2(a)(5).